Principles in International Law as Rational Reconstructions. A Taxonomy

18 Pages Posted: 27 May 2014

See all articles by Matthias Goldmann

Matthias Goldmann

Max Planck Institute for Comparative Public Law and International Law; Goethe University Frankfurt - Research Center SAFE; Goethe University Frankfurt - Cluster of Excellence Normative Orders; Goethe University Frankfurt

Date Written: November 13, 2013

Abstract

The paper suggests that principles as an important part of legal doctrine should be understood as the result of the rational reconstruction of legal discourse in the sense of Jürgen Habermas’ method bearing the same name (A.). It first argues that principles are best understood as abstract legal rules, not as normative presuppositions that are categorically different from rules (B.). As principles in international law just as in domestic legal orders are important parts of doctrine, the papers inquires into the self-understanding of doctrine, i.e. of the method used for the formation of principles (C.I.). Doctrine as the production of conceptual abstractions from the positive law has faced a number of methodological challenges over the last two centuries (C.II.). The method of rational reconstruction provides a methodologically tenable explanation. Envisaged by Jürgen Habermas as an explanation for the practice of communication and later applied to the practice of political discourse, this method allows understanding legal principles as the normative presuppositions of the participants in legal discourse (C.III.). Depending on which part of legal discourse one attempts to reconstruct, a taxonomy of principles in international law emerges, ranging from hard-law general principles of law to structural principles with merely heuristic functions (D.). The rational reconstruction of principles in international law thus helps to carve out the dividing line between law and politics and bears relevance for current scholarly endeavors (E.).

Keywords: Principles, rational reconstruction, international law, general principles, sources of law, legal theory, legal doctrine, Habermas, Dworkin, Alexy

Suggested Citation

Goldmann, Matthias, Principles in International Law as Rational Reconstructions. A Taxonomy (November 13, 2013). Available at SSRN: https://ssrn.com/abstract=2442027 or http://dx.doi.org/10.2139/ssrn.2442027

Matthias Goldmann (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

HOME PAGE: http://www.mpil.de/ww/en/pub/organization/scientific_staff/mgoldman.cfm

Goethe University Frankfurt - Research Center SAFE

House of Finance
Theodor-W.-Adorno-Platz 3
Frankfurt am Main, 60323
Germany

HOME PAGE: http://www.safe-frankfurt.de

Goethe University Frankfurt - Cluster of Excellence Normative Orders ( email )

Germany

Goethe University Frankfurt ( email )

Theodor-W.-Adorno-Platz 3
HoF H4
Frankfurt, 60629
Germany

HOME PAGE: http://https://www.jura.uni-frankfurt.de/62222403/Goldmann

Register to save articles to
your library

Register

Paper statistics

Downloads
248
Abstract Views
1,952
rank
124,147
PlumX Metrics